Michel v. Michel
| Decision Date | 08 November 2013 |
| Docket Number | No. 107,867.,107,867. |
| Citation | 312 P.3d 398 |
| Parties | In the Matter of the MARRIAGE OF Sandra MICHEL, Appellee, and Donato Michel, Appellant. |
| Court | Kansas Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Saline District Court; Patrick H. Thompson, Judge.
Charles A. O'Hara, of O'Hara & O'Hara LLC, of Wichita, for appellant.
Robert S. Jones, of Norton, Wasserman, Jones & Kelly, L.L.C., of Salina, for appellee.
Before LEBEN, P.J., GREEN and STANDRIDGE, JJ.
Donato Michel appeals from the district court's division of property and debts and orders for child support and spousal support in a divorce action. He also appeals from the district court's decision to deny his motion for a new trial or to alter or amend the judgment and his motion for reconsideration and other relief. For the reasons stated below, we find insufficient evidence to support the amount of income the district court imputed to Donato due to the land and cattle Donato owned in Mexico for purposes of calculating child support. Accordingly, we vacate the award of child support and remand for the district court to make additional findings of fact regarding the proper amount of income to impute to Donato based on his land and cattle in Mexico. If the district court is unable to make the required findings on remand, the district court shall recalculate the proper amount of child support without imputing any income to Donato based on the land and cattle in Mexico. We affirm the district court's decision in all other respects.
Donato and Sandra Michel were married in January 1999 in Chicago, Illinois. They had one child during the marriage, Alberto, who was bora in 2002. Sandra had another minor son, Jorge, from a previous relationship who came to live with the parties 2 years into the marriage. She had never received any support for Jorge from his biological father. Prior to the marriage, Sandra lived in Mexico and Donato lived in Chicago. After they married, they both lived in Chicago, where Donato was employed at Alpha Baking and owned an auto body shop. Sandra was employed at a school as a lunch room helper.
In 2006, Donato and Sandra sold the body shop and moved to Delphos, Kansas. They purchased a house in Delphos using some of the proceeds from the sale of the body shop for at least part of the down payment, although the amount of these proceeds was disputed at trial. Sandra testified that they received $122,000 from the sale of the body shop. Donato, however, testified that they only received $25,000 from the sale of the body shop, which they used along with the proceeds from the sale of a house in Chicago that Donato owned for the $100,000 down payment on the Delphos home.
After moving to Kansas, Sandra did not work outside of the home. Sandra testified she did not work because Donato worked for Habco, Inc., which regularly required him to be away from home for several weeks at a time.
Sandra later moved out of the parties' home in Delphos to Salina, where she stayed in a women's shelter before obtaining housing. She subsequently filed a petition for divorce in June 2010. On July 29, 2010, Sandra filed a motion in the divorce case asking the court to compel Donato to provide documentation regarding some property in Mexico. She filed another motion to compel discovery on September 3, 2010. In response, the district court issued an order compelling discovery on September 22, 2010. In addition, the district court held a hearing on November 22, 2010. Both parties appeared at the hearing, and the court again ordered Donato to provide to Sandra all the remaining unproduced documents. Donato, however, never produced any documents regarding land in Mexico.
At trial on May 26, 2011, Sandra testified that Donato owned three parcels of land in Mexico. She said when she was preparing to move to Salina, she found several documents related to these parcels in an envelope in a drawer. Donato admitted in his testimony that he had inherited one of these parcels from his father, which he shared with his siblings. He asserted that he could not sell this inherited land because it was part of a homestead.
Sandra also testified she discovered from the wife of one of Donato's brothers that Donato was purchasing an interest in another parcel of land in Mexico located on the opposite side of town from the inherited land. Donato sent $26,000 to Mexico in 2004 to buy an interest in this parcel of pasture land from one of his brothers, but Sandra testified that Donato had never talked to her about it. The documentation of this transfer showed that another of Donato's brothers also was contributing $26,000 toward this transaction, which the document valued at $52,000. Donato testified that this document was nothing more than an agreement among his brothers and himself to work the farmland and settle cattle on it.
The record also contains a document that references the “divestiture” of a third parcel of land in favor of Donato. Donato testified that this third document had nothing to do with title to land. He said it references his niece's property, which he had permission to use. Donato claimed that he intended to rent this land from his niece for grazing livestock but did not have the money to do so.
Sandra testified that during the marriage she and Donato would travel to Mexico in November every year. She claimed these trips were paid for from the cash sales of cattle Donato owned in Mexico. She said the cattle were always loaded and sold at that time of year and Donato kept the proceeds. On one of these trips in 2008, she saw the land and took pictures of cattle on one of the parcels of land. The parties could not agree at trial which parcel of land was depicted in the pictures. Nevertheless, Sandra testified that while taking these pictures she overheard Donato refer to the cattle as his. She also said there were approximately 65 cattle branded with a DM—Donato's initials—and that she saw farm machinery and equipment as well as two horses on the land when she visited. However, Donato testified that he did not own any farm equipment and that the cattle currently belonged to his mother and previously had belonged to his father, who died in 1987 and also was named Donato Michel.
Sandra testified that she found a wire transfer of approximately $4,000 that was deposited in the parties' joint bank account in May 2010. She did not know what happened to this wire transfer money, and Donato would not tell her who sent it. Sandra believed Donato sent money to Mexico during the marriage, but she did not know how much. She speculated that he sent his daughters in Mexico approximately $500–$600 per month while they were in school. Donato said he sent his daughters $300–$400 per month. Donato also said that he himself withdrew over $6,000 from the parties' bank account from January 4, 2010, to June 11, 2010. Donato also said he opened a savings account on May 29, 2010, and deposited $1,000 in it. In June 2010, he received a counter credit of $3,000 in this account.
On the other hand, Sandra stated that she wrote a check in 2009 to a friend using $5,000 from the parties' tax return because Donato promised her half of that money and never gave it to her. She said the friend only held this money for her and the parties later used that money to purchase a truck and tires. Sandra further admitted to taking $700 from Donato's wallet when she left in 2010 and to writing a check for $250 on June 25, 2010, after she left, for cash to send Jorge to Mexico.
Sandra testified that after she moved out of their house in Delphos to Salina, she tried to find employment. She said she got call backs from several employers and was offered a job with Kohl's in March 2011. However, Sandra testified that she could not begin work at Kohl's because her son Jorge was diagnosed with Leukemia the first week of March 2011. After Jorge was released from the hospital in April, she did not try to find employment again because Jorge was undergoing treatment several times a week in Wichita. Sandra said she drove him to Wichita for his treatments and was the only one who could care for him while he was home. Sandra noted that these treatments would continue for 2 to 5 years.
The parties sold their home in Delphos in August 2010. The proceeds were split and transferred to each party's attorney's trust account. Both parties agreed to remove some money from these proceeds to give to Sandra while she was in Wichita with Jorge and to pay a mediator for a settlement conference. The parties also owned three cars: a Camry, a minivan, and a Silverado truck. The record showed they had several credit cards with outstanding balances as well. In addition, a letter to Donato was introduced at trial that indicated he had a pension fund.
After all the evidence was submitted and the arguments were made, the district court took the matter under advisement and issued its memorandum decision and order on July 18, 2011. The court granted Sandra a divorce from Donato and approved the parties' agreement for joint legal custody of Alberto. In calculating child support under the Kansas Child Support Guidelines, the district court declined to impute income to Sandra as the parent having primary residency after finding Sandra was unemployed due to Jorge's illness. Finding Sandra's testimony regarding the land and cattle ranching operations in Mexico to be more credible than Donato's, the court imputed additional income of $10,000 per year ($833 per month) to Donato, noting that Donato failed and refused to produce requested information regarding this land so the court had to determine the amount to impute based on the evidence presented.
As to the division of property, the district court again made a factual finding that Donato owned the lands in Mexico and had an interest in the cattle on those lands, “based upon the deeds and amounts paid by [Donato], the pictures of the cattle on this land, the statements of [Donato] that...
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